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April 17, 2020

The disability findings of the Social Security Administration does not trump the Retirement System's Medical Board's disability determination


A teacher [Petitioner] filed an Article 78 challenging the decision of the Medical Board of the Teachers' Retirement System of the City of New York [Board] denying his application for accidental disability retirement benefits.

The Appellate Division sustained the Board's finding that Petitioner was not disabled was not arbitrary and capricious, and was supported by some credible evidence. The court noted also that the Board had "examined and interviewed Petitioner."

In response to the Petitioner's claim that the Medical Board ignored his medical history, the Appellate Division explained that "resolution of conflicting evidence was for the Medical Board to resolve."

Further, said the court, the findings of the Social Security Administration with respect to Petitioner's alleged disability "was not dispositive of the Medical Board's disability determination," citing  Barden v New York City Employees' Retirement Sys., 291 AD2d 215 nor did the findings of the medical arbitrator, who examined Petitioner after the Medical Board made its determination, warrant Article 78 relief.

The decision is posted on the Internet at:


April 16, 2020

A statutory, constitutional or public policy prohibition bars the arbitration of a provision set out in a collective bargaining agreement


As the Court of Appeals held in Matter of City of Johnstown [Johnstown Police Benevolent Assn., 99 NY2d 273,  a court undertakes a two-prong analysis in determining whether a grievance between a public employer and an employer organization representing employee in a collective bargaining unit is arbitrable.

The first prong is the "may-they-arbitrate" prong where the court must determine if "there is any statutory, constitutional or public policy prohibition against arbitration."

If the disputed issue survives this first test, the court must then consider the second prong of the test and determine if the parties did, in fact, "agree-to-arbitrate" the particular disputed issue.

In this action the employer contended that arbitration of the dispute was prohibited "as the underlying [issue] was a job security provision* such that arbitration would violate public policy."

Noting that there are some exceptions to the "violation of public policy" prohibition, the Appellate Division, citing Burke v Bowen, 40 NY2d 264, opined that a job security provision "does not violate public policy and therefore is valid and enforceable, but only if the provision is 'explicit,' the CBA [collective bargaining agreement] extends for a 'reasonable period of time,' and the 'CBA was not negotiated in a period of a legislatively declared financial emergency between parties of unequal bargaining power.'" The court further explained that the "requirement that 'job security' clauses meet this stringent test derives from the notion that before a municipality bargains away its right to eliminate positions ..., the parties must explicitly agree that the municipality is doing so."

Deciding that the plain language of the disputed language in the CBA "merely provides for minimum staffing on particular shifts," the Appellate Division said it agreed with Supreme Court that this provision was not a job security provision and "the stringent test in Johnson City Professional Firefighters Local 921 (Village of Johnson City), 18 NY3d at 32, does not apply" in this instance.

The Appellate Division found that the disputed provision, although it does not expressly mention safety, "is nonetheless more akin to a condition of employment, such as the safety of officers, than to a job security provision."

Finding no statutory, constitutional or public policy prohibition against arbitration, the Appellate Division said that as "the parties have used language that clearly manifests an intent to exclude" this subject from arbitration, this grievance falls "within the scope of [the CBA's] broad arbitration clause" and Supreme Court properly denied Employer's petition seeking a stay of arbitration."

* A job security provision insures that, at least for the duration of the agreement, the employee "need not fear being put out of a job"

The decision is posted on the Internet at:

April 15, 2020

Workers’ Compensation Board adds COVID-19 Virus as a serious health condition for the purposes of Paid Family Leave

The Workers’ Compensation Board added COVID-19 Virus as a serious health condition for the purposes of Paid Family Leave by means of its "Emergency Rule Making" powers.

The Emergency Rule, I.D. No. WCB-15-20-00007-E [Filing No. 250] was filed on March 27, 2020 and states that this amendment is adopted as an emergency measure because the Board wants to ensure there are not unnecessary disputes regarding Paid Family Leave due to the outbreak of COVID-19 by clarifying that COVID-19 should be considered an serious health condition for the purposes of family leave. 

The text of rule and any required statements and analyses may be obtained from Heather MacMaster, Workers’ Compensation Board, 328 State Street, Schenectady, NY 12305, (518) 486-9564, email: regulations@wcb.ny.gov

The emergency adoption took effect immediately upon filing and provides benefits for employees who are caring for their family member.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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